Sidney R. Harris v. Methuen, City of - Office of the City Solicitor (SPR 20251697)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 25, 2025 SPR25/1697 Nina I. Schulze, Esq. Second Assistant City Solicitor City of Methuen 41 Pleasant Street, Room 311 Methuen, MA 01844 Dear Attorney Schulze: I have received the petition of Sidney Harris, appealing the response of the City of Methuen (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 27, 2025, Mr. Harris requested “…the ‘audio’ of the minutes recently released, for the executive meeting held on June 10, 2021.” The City responded on May 12, 2025, assigning the request reference number 2025-197. Unsatisfied with the City’s response, Mr. Harris petitioned this office and this appeal, SPR25/1697, was opened as a result. While this appeal was pending, the City provided a supplemental response on June 23, 2025. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832 • Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Nina I. Schulze, Esq. SPR25/1697 Page 2 June 25, 2025 If there are any fees associated with a response, a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The City’s May 12th and June 23rd Responses On May 12, 2025, the City stated: The City Council, during its April 22, 2025 executive session, did not vote to release the audio recording of the June 10, 2021 executive session. The City Council did approve and release the official meeting minutes of the same session (June 10, 2021). This official record was provided to you on April 23, 2025. Therefore, the audio recording of the meeting remains privileged. This audio recording reflects legal advice given by the City Solicitor to the Council, which is privileged under the attorney-client privilege… In a subsequent email to this office and Mr. Harris on June 23, 2025, the City reiterated its May 12, 2025 response and added, “[t]he City is not required to release the audio of the meeting, as it is not the official record of said meeting. On May 12, 2025, the City released the official record of the meeting, the meeting minutes, to Mr. Harris.” Current Appeal In his appeal petition, Mr. Harris states: In keeping with the open meeting law, I contend that the audio recording should not contain any privileged information that is not in the written minutes. Since the issue that precipitated the Executive Session has long-since been resolved, there is no need to keep any part of the record privileged… The Methuen City Council determined that the minutes of the session are no longer privileged and should be released to the public to which they did so. The same logic should be applied to the tape recording, as there could not have been a privileged discussion about a lawsuit that did not exist and never materialized… In support of his appeal petition, Mr. Harris provided the following information to this office via email on June 24, 2025: I disagree with the assertion that the audio is not part of the public record. The public has a right to access all materials that form the basis of governmental decisions and actions. I again denounce the claim that there was a threat of litigation… I believe that the city conducted the executive session in violation of the open meeting law… Written minutes do not necessarily capture comments made that may have been inflammatory…

Nina I. Schulze, Esq. SPR25/1697 Page 3 June 25, 2025 Open Meeting Law Mr. Harris’ appeal petition, along with the City’s responses, raise issues potentially related to the Open Meeting Law. See G. L. c. 30A, § 22(f). Given that an interpretation of the Open Meeting Law falls within the authority of the Attorney General’s Office (AGO) and not this office, I am unable to address those issues in this determination. See G. L. c. 30A, § 23. I encourage the parties to contact the AGO for a determination on the status of the audio of the executive session minutes. Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Sidney Harris